Delhi High Court - Orders
Kamal Kumar Bahri vs Moti Lal Jain (Since Deceased Through ... on 1 October, 2024
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 27/2024, CM APPL. 47816/2024
KAMAL KUMAR BAHRI .....Appellant
Through: Mr. Jagdeep Kr. Sharma, Mr.
Kartikey Sharma, Advs.
versus
MOTI LAL JAIN (SINCE DECEASED
THROUGH LRS & ORS. .....Respondent
Through: Mr. Rohit Goel, Mr. Amit Goel, Mr.
Mithlesh Jha, Advs.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 01.10.2024
1. Admittedly, the impugned order dated 02.08.2024 decides an objection filed by the appellant under Section 47 read with Order XXI Rule XXVI of the CPC. The appellant, thereafter, filed a writ petition under Article 227 of the Constitution of India however, on an objection raised by the Registry, the appellant had to convert the said writ petition as an Execution First Appeal and thus, the matter has been posted before this Court. The instant appeal is shown to have been filed under Order XLI read with Order XLIII Rule 1 read with Section 10 of the Delhi High Court Act, 1966.
2. The learned counsel for the appellant then contends that according to his understanding the impugned order is not amenable to be challenged This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2024 at 23:45:44 under Order 43 of CPC and therefore, he had taken recourse of filing a writ petition under Article 227 of the Constitution of India.
3. I have heard the learned counsel appearing for the parties and perused the record.
4. The Court takes note of the decision in the case of Man Singh & Anr. v. Rajinder Parshad Sharma1, wherein, in paragraph no. 5 and 6 of the said decision it has been held that against an order under Section 47 of CPC an appeal would not lie. Paragraph no. 5 and 6 of the said decision reads as under:-
"5. The main contention of the petitioner is that appeal against the order of Executing Court was wrongly entertained by the learned ADJ. The learned ADJ had no jurisdiction to entertain the appeal since the order of the Executing Court was under Section 47 of CPC and an order under Section 47 CPC was a non-appealable order. The petitioner relied upon a decision of the Full Bench of Patna High Court given in case of Narmada Devi v. Ram Nandan Singh AIR 1987 Patna 33 (Full Bench).
6. Full Bench of Patna High Court had considered the issue whether an, appeal lies against an order under Section 47 CPC passed by an Executing Court and after considering the pre-amendment and post- amendment position of CPC came to the conclusion that an appeal would not lie against an order passed under Section 47 of CPC by the Executing Court. I am in agreement with the reasons given by the Patna High Court for holding that after the amendment of CPC in 1976, no appeal was maintainable against any order whatsoever passed under Section 47 of CPC."
5. Moreover, in the case of North Delhi Power Ltd. v. Mahindra Cold Storage2 also in paragraph no. 23, this Court has held that all the orders 1 2008:DHC:4572.
22018 SCC OnLine Del 9945.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2024 at 23:45:44 made in the course of execution or even in adjudicating objection under Section 47 of the CPC have not been conferred the status of a decree and therefore, in all such cases the appeal would not lie. Para 23 of the said decision reads as under:-
23. Section 100 and Order XLII Rule 1 of the CPC, invoking which this Second Appeal has been preferred, provide for a Second Appeal against a decree in First Appeal against a decree in suit. All the orders made in the course of execution or even if adjudicating objections under Section 47 of the CPC have not been conferred the status of a decree. The definition of a decree in Section 2(2) of the CPC does not include such an order. Though Section 2(2) of the CPC, as it stood prior to the amendment of the CPC of the year 1976, included in the definition of decree the determination of any question within Section 47 of the CPC but vide amendment of the CPC of the year 1976, determination of any question within Section 47 is no longer a decree. Else, Order XXI only in Rules 46H, 58 and 103 makes the orders specified therein appealable. The order of the Executing Court of dismissal of objections preferred by the appellant/defendant/judgment debtor to the execution sought by the respondent/plaintiff/decree holder does not fall in that category and was not appealable.
6. In view of the aforesaid, let the Registry to examine the present controversy in light of the decisions noted above and submit a report as to why the writ petition under Article 227 of the Constitution of India shall not allowed to be registered and why the appellant has been asked to convert the said petition to the captioned Execution First Appeal.
7. Let the matter be called out along with the report on 08.10.2024.
PURUSHAINDRA KUMAR KAURAV, J OCTOBER 1, 2024/KG This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2024 at 23:45:44